USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 1 of 20

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1459

DAVID M. THURSTON,

Plaintiff – Appellee,

v.

KEVIN FRYE, Avery County Sheriff, in his official and individual capacity; LEE BUCHANAN, Captain, in his official and individual capacity,

Defendants – Appellants,

and

AVERY COUNTY SHERIFF’S OFFICE,

Defendant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Max O. Cogburn, Jr., District Judge. (1:19-cv-00299-MOC-WCM)

Argued: September 19, 2023 Decided: April 29, 2024

Before NIEMEYER, RICHARDSON, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Niemeyer and Judge Rushing joined. USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 2 of 20

ARGUED: Sean Francis Perrin, WOMBLE BOND DICKINSON (US) LLP, Charlotte, North Carolina, for Appellants. James Elliott Field, J. ELLIOTT FIELD, JD, PLLC, Charlotte, North Carolina, for Appellee. ON BRIEF: Michael A. Ingersoll, WOMBLE BOND DICKINSON (US) LLP, Charlotte, North Carolina, for Appellants.

2 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 3 of 20

RICHARDSON, Circuit Judge:

Kevin Frye and Lee Buchanan appeal the district court’s denial of their motion for

summary judgment. They argue that they are entitled to qualified immunity because their

arrest of David Thurston did not violate his Fourth Amendment rights. And even if it did,

they say, it did not violate clearly established law. We disagree, finding that, when viewing

the facts as the district court has given them to us, Thurston’s arrest was unconstitutional.

We also conclude that the officers have failed to prove that they acted objectively

reasonably in seeking Thurston’s arrest warrant.

I. BACKGROUND

In 1992, Thurston pleaded guilty to two counts of sexually assaulting minors in

Montana. Years later, in 2015, Thurston moved to Avery County, North Carolina, where

Frye served as Sheriff and Buchanan was the Deputy in charge of sex-offender

registrations. Upon Thurston’s arrival, the Sheriff’s Office informed him of North

Carolina’s strict sex-offender-registration requirements. For example, North Carolina

requires an offender to register with the sheriff’s office in his county of residence,

, and verify his registration every six months after his first year of

registration, § 14-208.9A. To facilitate compliance with these requirements, a verification

form is mailed to each offender on the anniversary, and half-year anniversary, of his first

registration. Among other things, the law requires the offender to indicate on the form

whether he has changed his address since his last verification. § 14-208.9A(a)(3)(a). And

upon receipt of the form, an offender has only three days to execute and return it. § 14-

208.9A(a)(2).

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On August 9, 2016, Thurston informed Sheriff Frye that he had been invited to his

nephew’s wedding, which was scheduled for September 17 in Spokane, Washington. But

Thurston’s biannual verification was due to be sent out around that same time. Mindful of

these obligations, Thurston sought Sheriff Frye’s advice on how to comply with the law

and asked for his permission to attend the wedding. After they exchanged texts, Sheriff

Frye told Thurston on August 11 that he could “[g]o on” because the Sheriff’s Office was

“working on it.” J.A. 721. All Thurston needed to do, Sheriff Frye explained, was email

a copy of Thurston’s Washington visitor-registration form within ten days of his arrival.

Thurston left North Carolina that same day. Yet on his way to Spokane, Sheriff

Frye reached out again, asking Thurston for the address of where he would be staying.

Thurston provided his address and later arrived in Washington on August 21. Once there,

he registered as a visitor and emailed the registration to Sheriff Frye as instructed. In all,

Thurston stayed for over a month, interspersed with excursions to Seattle to visit a friend.

On September 9, while Thurston was away, the Sheriff’s Office mailed his

verification form. Thurston’s sister, who lived with him in North Carolina, told him about

the form, prompting Thurston to contact Sheriff Frye for guidance. But Sheriff Frye never

responded, so Thurston decided to “let it lie,” given their prior interactions. J.A. 723.

The Sheriff’s Office, however, did not “let it lie.” Instead, Deputy Buchanan began

investigating Thurston. Three times after Thurston’s September 12 verification deadline,

Deputy Buchanan stopped by Thurston’s residence. Of course, Thurston was not there.

On October 6, the Spokane County Sheriff’s Office phoned Thurston, informing

him that Deputy Buchanan was looking for him and was considering getting the U.S.

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Marshals involved. Concerned, Thurston contacted Deputy Buchanan, who said that his

prolonged absence was causing problems back home. Deputy Buchanan then erroneously

told Thurston that it was illegal for him to be out of the state for more than thirty days. Yet

in the same breath, he also said that he had spoken with Sheriff Frye and had decided that,

as long as Thurston was back in North Carolina by October 19, “there would be no

problem.” J.A. 723. Thurston met that deadline, returning to North Carolina on October

19.

Even so, Deputy Buchanan discussed potential criminal liability with an assistant

district attorney, who recommended that Deputy Buchanan pursue charges against

Thurston. And on October 19—knowing that he and Sheriff Frye had given Thurston until

that day to return to the state—Deputy Buchanan obtained a warrant from a local magistrate

alleging three different criminal violations committed from September 19 to October 18:

(1) “being out of state for thirty (30) + days,” (2) willfully failing to return his verification,

and (3) willfully failing to report in person to the Sheriff’s Office. J.A. 724.

On October 21—without prompting—Thurston went to the Avery County Sheriff’s

Office to deliver his now-completed verification form. He was greeted with an arrest. He

posted bail that same day, and the charges against him were eventually dropped as a

“misunderstanding with regard to how to comply with technical requirements.” J.A. 725.

One year later, Thurston sued the Avery County Sheriff’s Office, Sheriff Frye, and

Deputy Buchanan alleging, among other things, violations of Thurston’s Fourth

Amendment rights. The officers asserted defenses of qualified immunity and moved for

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summary judgment. The district court disagreed and denied their motion. This appeal

followed.

II. DISCUSSION

Sheriff Frye and Deputy Buchanan maintain on appeal that they are entitled to

qualified immunity. They first argue that they did not violate Thurston’s Fourth

Amendment rights because they had probable cause to seek his arrest. Further, they argue

that, even if the arrest lacked probable cause, it did not violate clearly established law

because it was supported by a warrant. We find, however, that Thurston’s arrest violated

his Fourth Amendment rights. And, under the circumstances of this case, we also conclude

that Thurston’s right to be free from unlawful arrest was clearly established.

Before reaching the merits, however, we first must consider our jurisdiction.

Selective Ins. Co. of Am. v. Westfield Ins. Co.,

, 242 (4th Cir. 2023).

A. Jurisdiction

Outside of certain statutory exceptions, our appellate jurisdiction is limited to “final

decisions” of the district courts.

. Since the denial of summary judgment

is not a final decision, we generally lack jurisdiction to hear an immediate appeal of such

an order. Hensley v. Horne,

(4th Cir. 2002). That said, under the

Supreme Court’s collateral order doctrine, some decisions that do not constitute final

judgments are treated as sufficiently “final” to trigger appellate jurisdiction under § 1291.

Cohen v. Beneficial Indus. Loan Corp.,

(1949). To fall within this

doctrine, an order must “(1) ‘conclusively determine the disputed question,’ (2) ‘resolve

an important issue completely separate from the merits of the action,’ and (3) ‘be

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effectively unreviewable on appeal from a final judgment.’” Midland Asphalt Corp. v.

United States,

(1989) (quoting Coopers Lybrand v. Livesay,

(1978)).

A district court’s denial of a qualified-immunity defense falls within the collateral

order doctrine—but only if it turns on an issue of law. Mitchell v. Forsyth,

(1985). We lack jurisdiction if the district court denied summary judgment because it

found that the plaintiff sufficiently disputed material facts by providing adequate evidence

to support his version of events. Winfield v. Bass,

, 529–30 (4th Cir. 1997)

(en banc).

Thurston argues that the district court’s qualified-immunity denial turned on facts,

not law. We disagree. On appeal, the officers challenge the district court’s legal

determination that, viewing the evidence in the light most favorable to Thurston, a

constitutional violation was alleged under clearly established law. This is a legal inquiry.

Whether particular conduct violates a constitutional right and whether that right is clearly

established are legal questions. Iko v. Shreve,

(4th Cir. 2008); Scott v.

Harris,

, 381 n.8 (2007) (applying this to a Fourth Amendment claim). And

we may review such questions on interlocutory appeal because we don’t find the facts

underlying the claim but rather accept them “as the district court gives them to us—that is,

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in the light most favorable to the plaintiff.” Hicks v. Ferreya,

, 309 (4th Cir.

2020); Mitchell,

. 1

B. Qualified Immunity

Qualified immunity protects government officials from claims of statutory or

constitutional violations when they reasonably mistook the legality of their actions. See

Merchant v. Bauer,

(4th Cir. 2012). To determine whether Sheriff Fry

and Deputy Buchanan are entitled to qualified immunity, we must answer two questions,

with a split burden of proof. See Stanton v. Elliot,

, 233 (4th Cir. 2022). First,

has Thurston established that, when viewing the evidence most favorably to him, the

officers violated his constitutional rights?

If so, then have the officers shown that the

asserted rights were not clearly established by law at the time of the interaction?

Put

another way, have the officers established that it was not “clear to a reasonable officer that

the conduct in which [they] allegedly engaged was unlawful in the situation [they]

confronted”? Merchant,

(quoting Figg v. Schroeder,

(4th Cir. 2002)). Because we answer the first in the affirmative and the second in the

negative, we affirm the district court’s denial of summary judgment.

1 That the district court noted the existence of genuine disputes of material fact does not convert this into an unreviewable factual question. “Denial of summary judgment often includes a determination that there are controverted issues of material fact.” Behrens v. Pelletier,

(1996). While we may not review whether there were genuine issues of material fact on appeal, we may address the portions of an order denying summary judgment that “resolve a dispute concerning an abstract issue of law relating to qualified immunity—typically, the issue whether the federal right allegedly infringed was clearly established.”

(cleaned up). That is what the officers ask us to do here. 8 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 9 of 20

1. Thurston established that the officers violated his Fourth Amendment right against unreasonable seizure.

On the first question, Thurston alleges that his warrant-backed arrest violated the

Fourth Amendment because it amounted to an unreasonable seizure. 2 When a person seeks

to challenge a warrant-backed arrest under the Fourth Amendment as lacking probable

cause, that challenge “at most . . . can be pursued through a cause of action for malicious

prosecution.” Porterfield v. Lott,

(4th Cir. 1998); Smith v. Munday,

(4th Cir. 2017). 3 In order to establish malicious prosecution, a plaintiff must

show that (1) the defendant seized him pursuant to legal process but without probable cause

and (2) the criminal proceedings terminated in the plaintiff’s favor. Massey v. Ojaniit,

(4th Cir. 2014). The parties do not contest the favorable-termination prong.

Thus, Thurston carries his burden on the first question if he shows that there was no

probable cause to arrest him.

; Smith,

.

“Probable cause has long been understood to encompass circumstances that, while

less than a preponderance, ‘warrant suspicion.’” United States v. Gondres-Medrano,

, 714 (4th Cir. 2021) (quoting Locke v. United States,

(1813)). Whether circumstances “warrant suspicion” turns on the combination of two

2 The Fourth Amendment protects “[t]he right of the people to be secure . . . against unreasonable searches and seizures” and guarantees that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. 3 A false-arrest claim applies only to the reasonableness of a warrantless arrest and cannot be maintained when the official “arrests a defendant pursuant to a facially valid warrant.” Porterfield,

; Brooks v. City of Winston-Salem,

(4th Cir. 1996). 9 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 10 of 20

factors: the suspect’s conduct as known to the officer and the nature of the offense. 4

Graham v. Gagnon,

(4th Cir. 2016). So to determine whether an arrest

was backed by probable cause, we ask whether the facts known to the officer could make

a prudent officer believe that the suspect’s conduct satisfies the elements of a criminal

violation. Hupp v. Cook,

(4th Cir. 2019). And in so doing, we remain

mindful of the Supreme Court’s admonition that “in a doubtful or marginal case a [seizure]

under a warrant may be sustainable where without one it would fall.” United States v.

Leon,

(1984) (quoting United States v. Ventresca,

(1965)).

Thurston’s arrest warrant identified three crimes: (1) failing to register that he would

be out of state for thirty days, purportedly in violation of

; (2)

willfully and feloniously failing to return the form verifying his address to the Sheriff’s

Office in the time allotted, in violation of § 14-208.11(a)(3); and (3) willfully and

feloniously failing to report in person to the Sheriff’s Office, in violation of § 14-

208.11(a)(7). 5

4 Probable cause need not be tailored to the offense the arresting official suspected at the time of arrest. Rather, probable cause exists when “the officer had probable cause to arrest for any offense, not just the offense cited at the time of arrest or booking.” District of Columbia v. Wesby,

, 54 n.2 (2018) (emphasis added). Thus, we assess probable cause in relation to any crime identified by the parties in the case, even one identified only during litigation. See id.; see also Devenpeck v. Alford,

(2004).

As the parties discuss only these potential offenses, we do the same. See Wesby, 5

583 U.S. at 55 n.2.

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The parties agree that the officers lacked probable cause for the first, nonexistent

offense. 6 But they contest probable cause for the other two offenses. Thurston argues that

these crimes carry a mens rea element of willfulness. See

(a).

And, according to him, at the time they sought the warrant, the officers lacked probable

cause to believe he was acting “willfully.”

North Carolina defines “willful” as (1) “the commission of an act purposely and

deliberately in violation of law,” or (2) “the wrongful doing of an act without justification

or excuse.” State v. Ramos,

(N.C. 2009) (quoting State v. Arnold,

(N.C. 1965)). Thus, willfulness can be established in two ways. First, a

person acts willfully when she specifically intends to break the law. But that means that

conduct stemming from a mistake of law, State v. Chavis,

(N.C. Ct.

App. 1980), or a defendant’s belief that “she ha[s] the right” to do what might otherwise

be criminal conduct, State v. Humphreys,

, 799–800 (N.C. Ct. App. 2020),

is not generally considered “willful.” Second, a person acts willfully when she wrongfully

acts without justification or excuse, even if she lacks specific criminal intent. Ramos,

; State v. Chamberlain,

(N.C. Ct. App. 2014). To

determine whether a person so acts, we ask whether she acts “wrongful[ly],” Arnold,

, with a “bad purpose,” State v. Clifton,

(N.C. 1910), or

6 We note that “the protection of qualified immunity applies regardless of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’” Pearson v. Callahan,

(2009) (quoting Groh v. Ramirez,

(2004) (Kennedy, J., dissenting)). But the officers do not press on appeal that their mistake of law here was reasonable, and so we do not address it. 11 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 12 of 20

“without just cause, excuse, or justification,” State v. Dickens,

(N.C.

1939) (quoting State v. Yelverton,

(N.C. 1928)). 7 Put more succinctly,

we ask whether she was animated by some improper motive. 8

Deputy Buchanan and Sheriff Frye therefore needed some reason to believe that

Thurston either purposefully violated the law or acted with some other improper purpose.

Ramos,

; Clifton,

; cf. Wesby, 583 U.S. at 57–62. But the

district court’s order forecloses any argument that they believed this. Viewing the evidence

in the light most favorable to Thurston, the district court accepted that both defendants

“definitely knew that . . . Thurston was eager to comply with the law.” Thurston v. Avery

Cnty. Sheriff’s Off., No. 1:19-CV-299,

, at *8 (W.D.N.C. Mar. 22, 2021).

And the district court accepted that the officers knew that Sheriff Frye gave Thurston

permission to travel and that Thurston followed every instruction the Sheriff’s Office gave

him.

In so concluding, the district court not only accepted the facts alleged about

Thurston’s actions but also accepted that the officers had concluded, based on those

actions, that Thurston was eager to comply with the law throughout his sojourn.

7 To illustrate this notion of willfulness, consider State v. Davis,

(N.C. Ct. App. 1987). A jury there convicted the defendant of willful and wanton injury to real property by intentionally clogging a toilet in a museum, which led to extensive water damage.

. The court sustained the conviction, noting that it was “not necessary for a person to know that he is breaking the law for an act to be ‘willful’” and that the jury could reasonably “infer that defendant put the paper towels in the toilet intending to create a serious water problem,” which sufficed to show willfulness.

. 8 With this understanding, we can see the first category (intent to break the law) as an outgrowth of this second category. If you intend for your conduct to break the law, then you have acted with some improper purpose. 12 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 13 of 20

In this interlocutory appeal, we must accept “the facts as the district court gives them

to us.” Hicks, 965 F.3d at 309. 9 Doing so requires us to conclude that the officers lacked

probable cause to believe that Thurston acted willfully. 10 The district court accepted the

inference that Thurston, by asking Sheriff Frye for advice and obtaining his permission to

leave, believed that he was following the law and remained motivated by a desire to follow

the law. Even if Thurston’s beliefs were mistaken, “a mistake of law” is a defense to an

offense that requires willfulness. Chavis,

. And since the district court

has accepted that the officers knew Thurston’s beliefs and motives, it was unreasonable for

the officers to believe that Thurston acted with “a bad purpose” or “with knowledge that

his conduct was unlawful.” Ramos,

; Clifton,

. Therefore,

a prudent officer could not reasonably conclude that Thurston was acting “willfully”; so

9 That is, we must accept how the district court understood the facts in the light most favorable to the plaintiff. Hicks, 965 F.3d at 309. But that doesn’t mean “we are strictly confined to the four corners of the district court’s order: we may assume some facts when the district court does not explicitly state them, provided that we draw all inferences in the plaintiff’s favor.” Williams v. Strickland,

, 768 n.3 (4th Cir. 2019). Here, however, the district court explicitly stated all that is needed to decide whether probable cause existed—that Deputy Buchanan and Sheriff Frye knew that Thurston was eager to comply with the law and that he had complied with their office’s instructions. This places us in a markedly distinct procedural posture than the Supreme Court in District of Columbia v. Wesby. There, the district court made no explicit statement that the officers knew that the arrestees lacked the requisite mens rea. See 583 U.S. at 57. So the Court could reject the appeals court’s conclusion that the arrestees had the requisite mens rea. Id. In contrast, we are bound by the district court’s version of the facts. 10 Though accepting that the officers knew that “Thurston was eager to comply with the law” for evaluating summary judgment, the district court acknowledged that a genuine dispute of material fact remained “about what [Deputy] Buchanan knew” as well as “what he communicated to the district attorney and magistrate judge when he sought the warrant.” Thurston,

, at *8–9. 13 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 14 of 20

there was no probable cause to believe that he was guilty of either the second or the third

charge.

Accordingly, accepting the facts as the district court has given them to us, Sheriff

Frye and Deputy Buchanan lacked probable cause to arrest Thurston for any of the crimes

alleged in the warrant. For “notwithstanding the deference that magistrates deserve,” Leon,

, the officers’ knowledge of Thurston’s pure motives precludes finding that

probable cause existed.

2. The officers did not prove that Thurston’s arrest was not contrary to clearly established law.

Finding a constitutional violation merely begins the qualified-immunity inquiry.

Now the burden shifts to Sheriff Frye and Deputy Buchanan to show that the arrest was

not contrary to clearly established law. Stanton, 25 F.4th at 233 n.5. This requires showing

that Thurston’s “right to be free from arrest under the particular circumstances of the case”

was not clearly established. See Graham,

. And the officers should be

immune—that is, they did not act contrary to clearly established law—so long as they

“acted in an objectively reasonable manner or . . . in ‘objective good faith.’”

Messerschmidt v. Millender,

(2012) (quoting Leon, 468 U.S. at 922–

23). So whether a plaintiff’s right to be free from arrest is clearly established turns not on

“whether there actually was probable cause . . . but whether an objective law officer could

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reasonably have believed probable cause to exist.” Gomez v. Atkins,

, 261–

62 (4th Cir. 2002). 11

The officers’ primary evidence that an objective officer could believe that probable

cause existed is that they arrested Thurston pursuant to a warrant. And it is true that, when

officers conduct an arrest pursuant to a warrant, “the fact that a neutral magistrate has

issued a warrant is the clearest indication that the officers acted in an objectively reasonable

manner.” Messerschmidt,

; Graham,

. But the Supreme

Court has recognized a narrow exception to this rule, holding that a warrant loses its

evidentiary value for objective reasonableness when “it is obvious that no reasonably

competent officer would have concluded that a warrant should issue.” Messerschmidt,

(quoting Malley v. Briggs,

(1986)); Smith,

.

For instance, “where the warrant was ‘based on an affidavit so lacking in indicia of

probable cause as to render official belief in its existence entirely unreasonable,’” “the

‘shield of immunity’ otherwise conferred by the warrant . . . will be lost.” Messerschmidt,

11 Some circuits have explained this concept as “arguable probable cause.” See, e.g., Floyd v. Farrell,

(1st Cir. 1985) (“[S]eeking an arrest warrant is ‘objectively reasonable’ so long as the presence of probable cause is at least arguable.”). We see no distinction between the “arguable probable cause” test and the Supreme Court’s formulation of the inquiry that turns on whether a probable-cause belief is “reasonable.” And as even those circuits recognize, “probable cause for a warrantless arrest may be different than probable cause for the issuance of an arrest warrant.”

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(first quoting Leon,

; and then quoting Malley,

); Sims v. Lavowitz,

(4th Cir. 2018). 12

This is one such exceptional case. Although we do not have the warrant application

on record, we assume that the officers fairly presented the facts known to them to the

magistrate. See Graham,

(assuming, in the absence of the application on

record, that the officers “fairly presented” the known facts to the magistrate); Merchant,

. 13 Accepting the district court’s view of the facts, this would include their

12 The principles we espouse here apply to an officer who sought and obtained the warrant. Different principles may apply to an officer who only executed the warrant. After a warrant issues, officers have “a sworn duty to carry out its provisions.” Leon,

n.21. Warrants thus impose on officers “an obligation to arrest” the person named in the warrant. Utah v. Strieff,

, 240 (2016). Of course, before executing the warrant, the officer has “a duty to ensure that the warrant conforms to constitutional requirements.” Groh,

n.6. But as long as the previously issued warrant is not “so facially deficient . . . that the executing officers cannot reasonably presume it to be valid,” “‘a warrant issued by a magistrate normally suffices to establish’ that a law enforcement officer has ‘acted in good faith’” in executing it. Leon, 468 U.S. at 922–23 (quoting United States v. Ross,

, 823 n.32 (1982)). That is because, “[i]n the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient.”

. 13 We caution that this assumption may not always be warranted. But under these circumstances, it is. Drawing all inferences in Thurston’s favor, the district court accepted that the officers knew a highly exculpatory fact that would have negated probable cause. This leaves us with only two options: Either the officers included this fact in the warrant application, in which case they likely transgressed Leon, or they omitted it from the application, in which case they likely violated Franks v. Delaware,

(1978). See Miller v. Prince George’s County,

(4th Cir. 2007) (holding that an officer violates Franks when he omits from the affidavit “material facts with the intent to make, or with reckless disregard of whether [he] thereby made, the affidavit misleading” (citation omitted)); United States v. Lull,

, 117 & n.2 (4th Cir. 2016) (holding that the exculpatory significance of the information omitted can inform our conclusion about an officer’s intent). Either option fatally undermines the evidentiary value of the (Continued) 16 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 17 of 20

knowledge that Thurston was trying to comply with the law. At the time of the officers’

actions, the North Carolina Supreme Court had acknowledged the willfulness requirement

baked into North Carolina’s sex-offender-registry statute. See State v. Crockett,

(N.C. 2016). And as discussed above, North Carolina law has clearly established

that people do not act willfully when they are motived by a desire to comply with the law.

So when the officers sought and obtained an arrest warrant, they had affirmative knowledge

that Thurston was not breaking the law. 14 No reasonable officer in such circumstances

could believe that a warrant should issue. Malley,

. Therefore, the warrant

cannot establish the officers’ objective reasonableness.

In so holding, we are mindful of the Supreme Court’s oft-repeated guidance that a

right is only clearly established if it has a “sufficiently clear foundation in then-existing

precedent.” Wesby, 583 U.S. at 63; see also White v. Pauly,

, 79 (2017) (per

curiam) (holding that a court must “identify a case where an officer acting under similar

circumstances . . . was held to have violated the Fourth Amendment”). Even so, the

unlawfulness of seeking out and executing a warrant after learning facts establishing a

warrant. Thus, given that the officers bear the burden of proof at this step of the inquiry, and given that we must draw all inferences for Thurston, we cannot hold at this posture that the warrant is sufficient evidence of objective reasonableness. 14 While Deputy Buchanan was the officer who sought out the warrant, there was a dispute about Sheriff Frye’s involvement in the warrant-application process. As the district court concluded, “it is unclear what communications occurred between [Deputy] Buchanan and Sheriff Frye as [Deputy] Buchanan began to seek an arrest warrant for Mr. Thurston.” Thurston,

, at *6. Still, there is some evidence that the two officers discussed Thurston’s case before Deputy Buchanan applied for the warrant. So, viewing the evidence in the light most favorable to Thurston, Sheriff Frye was sufficiently involved to justify liability at this stage. See Leon,

n.24. 17 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 18 of 20

suspect’s innocence was clearly established by our holding in Merchant v. Bauer,

. Merchant involved a § 1983 suit against an officer who applied for a warrant and

arrested the plaintiff for falsely assuming the privileges of or pretending to be a police

officer. Id. at 665. We held that the officer lacked probable cause to conduct the arrest,

despite the issuance of a warrant, because he knew information before applying for the

warrant that both undermined any other evidence the officer might have had and tended to

exonerate the plaintiff of the crime. Id. at 663, 665. In other words, we held that knowledge

of sufficiently exculpatory information trumps the inculpatory evidence of the warrant. So

too here. The district court found that Sheriff Frye and Deputy Buchanan knew that

Thurston was not acting willfully and thus could not satisfy each element of the relevant

crimes, yet they sought a warrant and arrested him anyway. After Merchant, no reasonable

officer could believe that an arrest in such circumstances was lawful. 15

In one last attempt, the officers point to an assistant district attorney’s suggestion

that Deputy Buchanan seek out a warrant against Thurston. And the Supreme Court in

Messerschmidt did treat the officer’s decision to speak with two superiors and a prosecutor

as “pertinent” evidence of objective reasonableness. 565 U.S. at 554–55. For when

officers “t[ake] every step that could reasonably be expected of them” to confirm the

existence of probable cause, such as by going all the way up the internal chain of command

before submitting a warrant application to a magistrate, that is good evidence of the

15 Even if Merchant were not fully on-point, we would still decline to rule in the officers’ favor, since this is one of those rare “obvious case[s] where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances.” Wesby, 538 U.S. at 64. 18 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 19 of 20

officers’ good faith. Id. at 554 (quoting Massachusetts v. Sheppard,

(1984)). But the officer in Merchant did so, too, yet we still found that this could not

overcome the extreme unreasonableness of the officer’s actions. Merchant,

. This makes sense. When probable cause is debatable, a district attorney’s approval,

following “a full presentation of the known facts,” Kelly v. Borough of Carlisle,

(3d Cir. 2010) (quoting Cox v. Hainey,

(1st Cir. 2004)), should

serve as good evidence of objective reasonableness. Messerschmidt,

. But

it makes less sense to do so when no reasonable officer would have sought out the warrant.

If “the greater incompetence of the magistrate” issuing a warrant cannot excuse the

officer’s conduct, Malley,

n.9, then it’s hard to see why the greater

incompetence of the district attorney can do so. Like we held in Merchant, when no

reasonable officer would seek out a warrant, an officer’s “conversation with the state’s

lawyer does not—as a matter of law—overcome the unreasonableness of the criminal

charge and its lack of probable cause.”

. This is especially true when we

don’t even know what the officers told the district attorney during that conversation. 16 Cf.

Messerschmidt, 565 U.S. at 553–54 (detailing how the officers “submitted the warrant

application for review by [two superiors and a deputy district attorney]”); Gomez,

. Thus, the assistant district attorney’s suggestion that the officers seek out a warrant

against Thurston does not prove the objective reasonableness of their actions.

16 Thurston,

, at *9 (“[T]here remains a genuine dispute of material fact about what [Deputy] Buchanan knew and what he communicated to the district attorney and magistrate judge when he sought the warrant.”). 19 USCA4 Appeal: 21-1459 Doc: 48 Filed: 04/29/2024 Pg: 20 of 20

We thus conclude that the officers have failed to carry their burden to show that they

are entitled to summary judgment. Though they acted pursuant to a warrant, no reasonable

officer would have sought out a warrant here. The district court therefore correctly denied

their assertions of qualified immunity.

* * *

Qualified immunity is controversial and criticized. But it is binding. And it

provides a powerful defense for officers who, while performing the critical services they

provide to society, make reasonable mistakes in complying with the law. And warrants

serve a similar purpose. We recognize that “the magistrate is more qualified than the police

officer to make a probable cause determination.” Malley,

n.9. Thus, a

magistrate’s approval of a warrant application in the average case will be the “clearest

indication” of the officer’s objective reasonableness. Messerschmidt,

.

But “clearest” should not be confused with “absolute.” In a narrow set of cases,

where no reasonable officer would have sought the warrant, we cannot treat its issuance as

evidence of objective reasonableness. Taking the facts as the district court has given them

to us, we find that this is one such case, and that the officers have not carried their burden

to prove objective reasonableness. Thus, the district court’s decision must be

AFFIRMED.

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